Race-based college admissions look down the barrel of the gun again

Yesterday, the Supreme Court heard oral argument Fisher v. University of Texas. The case involves a challenge to the university’s use of race to admit Black and Hispanic undergraduate applicants who otherwise would be rejected under its standard admissions criteria.

Given the liberality of the University of Texas’s standard criteria, it is absurd that the university indulges in such racial preferences. The university already ensures the admission of large numbers of minorities by guaranteeing entrance to anyone who finishes in the top ten percent of his or her Texas high school class. Because there are many minority-dominated high schools in Texas, the university achieves a substantial amount of diversity through its normal criteria, which are not challenged in the litigation. (I regard the “admit the top 10 percent” policy as intentional race discrimination. It was adopted by then governor George W. Bush largely for the purpose of admitting more minorities. But, again, this isn’t an issue in the Fisher case).

Given this situation, there appears to be very little chance that the Supreme Court will uphold the layer of racial preferences at issue in Fisher. It’s worth noting, however, that the three liberal Justices who are participating in the case (Ginsburg, Breyer, and Sotomayor) will likely vote in favor the university — so strong is their commitment to the racial spoils system.

The big question, though, is whether the Court will issue a broad opinion that bars colleges and universities from considering race in the admission of applicants or that substantially limits their ability to consider it. To do so, the Court would have to renounce (or “gut,” to use Justice Sotomayor’s term) its 2003 decision that in Grutter v. Bollinger. Grutter held that universities can use race to some extent to achieve a “critical mass” of diversity that supposedly benefits students.

Will the Supreme Court renounce or gut Grutter? Yesterday, Fisher’s lawyer was far from aggressive in asking the Court to do so. His position, understandable given his role as the advocate for a client rather than a clause, was that Grutter should go if necessary for Fisher to win.

Yet there now appears to be a majority of Justices who don’t believe Grutter was correctly decided. Three current Justices – Scalia, Thomas, and Kennedy – dissented from the Court’s opinion. And Roberts and Alito almost certainly agree with the Grutter dissent.

Disagreeing with a precedent isn’t the same thing as being willing to overturn it. However, as Roger Clegg, president and general counsel of the Center for Equal Opportunity, says: “It seems unlikely that the Court will consider itself to be bound by a legal framework that is its own creation if it finds it to be unworkable – that is, inconsistent with its other jurisprudence, unmanageable as a practical matter, and pushing the Court and universities to perverse outcomes.”

Yesterday, there was considerable inquiry into these concerns. Chief Justice Roberts, known to be critic of racial preferences, was a particularly persistent questioner.

The key vote likely will be that of Justice Kennedy. As noted, he dissented in Grutter, and his questioning yesterday indicated no change of heart. Nor, however, did he show himself committed to overturning Grutter in a case that can be decided without doing so. More likely than renouncing the decision, the Supreme Court may end up substantially revising its meaning. But it’s not clear that the Court will even go that far.

In sum, when it comes to renouncing or substantially “revising” Grutter, this may be another one of those cliffhangers that turns on the views of one unpredictable Justice. Neither side likes to be in this position, and conservatives have earned the right to feel particularly uncomfortable there.

NOTE: This post has been modified slightly from the original version to correct a factual error and add clarity.